How will I do day-to-day management?

I am currently on an E-3 visa. I am planning to invest $1.5 million in a new commercial enterprise. What will be my immigration status while my I-526 is under process? As the regulations say, I am supposed to be actively involved in-day-to-day activity for the business. How will that be possible without a valid status?

Answers

The requirement is that you are involved, or will be involved, in the management of the new commercial enterprise. This could be day to day activities, but it also could include limited advisory or policy-making/policy-reviewing roles, such as a limited partner or board member. As for maintaining your non-immigrant status, that is very important. You may not be eligible to engage in certain activities, including employment for entities other than your E-3 sponsor, so you want to be careful about that. Usually, the I-526 petition for EB-5 classification can be prospective; you don''t need to be actually working, but if you can show them in your business plan that once you have work authorization, it is more likely than not that you will comply with the management requirement.

Philip H Teplen

Immigration Attorney

Answered onMarch 12, 2014

You need to engage an immigration attorney. This cannot be simply answered on the Internet.

As an Australian and U.S. EB-5 attorney, I have represented Australians in a similar situation as yours. We will need to analyze your situation with answers to more questions, and develop a strategy so that you may invest and manage the project while you are in legal stratus. We already have a suggested approach.

You must remain an E-3 visa holder during the pending of your I-526. If for any reason your E-3 visa is likely to expire before your I-526 is approved, you must either do everything possible to renew it, or alternatively switch to another non-immigrant visa in order to remain in the United States. Also, regardless of whether you maintain your E-3 or another non-immigrant visa, you cannot be actively involved in-day-to-day management of the business. In fact, until your EB-5 green card is issued, you cannot be involved in-day-to-day management of the business.

Generally, the "active" requirement is taken to mean that you have a say in the policy of the business, but is not generally interpreted as day-to-day management (though, of course, that would be acceptable). Membership of the board of directors, being a corporate officer, or the rights and duties of a member of the LLC or limited partner of a limited partnership would be acceptable. Regardless, this managerial role is understood to begin once you are accepted as a member of the new commercial enterprise, which may be upon filing or approval of the I-526 petition.

You will remain in E-3 status, assuming your visa is still valid, until your I-526 is approved. You are only required to be involved in day-to-day operations after your I-526 is approved.

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